On Divorce In Private International Law

This article discusses the divorce on private international law in three aspects.jurisdiction of divorce,choice of law of divorce and recognition of foreign divorces,by means of studying the legislations,practices and theories on these issues.It also comments on the related legislations and practices of our country,and raises the suggestions of corrections. The article consists of three chapters.Chapter I reserches into the jurisdiction of divorce. The internal legislations of most countries rely mainly on its traditional jurisdiction of nationality or domicile, and stipulate some exceptional or supplemental basis of jurisdiction at the same time. The international conventions who make every effort to merge the difference between nationality and domicile have put forward the jurisdictional basis of habitual residence and put it in a very important position. Because of the protection of national parties by various countries and other reasons, the divorce case jurisdictional basis tend to be plural.This trend makes the difference between the two methods of nationality and domicile no longer obvious. The enlargement of the jurisdiction of various countries,in addition of the increase of the population flowed and the international conventions who stipulate the alternative divorce jurisdictional basis,result in the divorce jurisdiction conflict, the parallel lawsuit mainly. The settlement of that jurisdiction conflicts still depends mainly on the regulation of international legislations. The divorce jurisdictional basis of our country are very extensive, including the domicile, nationality, or habitual residence of the parties. In cases of the parallel lawsuit of divorce, the judicial explanation of our country stipulates that the court of our country has always the right to administer. The regulations are not compatible with the current general practice of international community, and it is unfavorable to the proper settlement of the transnational disputes of divorce. So we must perfect the stipulations. Except the cases that the international treaties which our country concludes or participates in has regulated, when foreign courts has already made judgement to the same case or is handling it now, the court of our country should seldom exercise jurisdiction, and the lawsuit that is already carried on deserves to be discontinued, but if the court of our country does not exercise jurisdiction, the party's legitimate rights and interests areunable to be protected or the public order of our country will be impaired, the court of our country can exercise jurisdiction to the same divorce case.Chapter II studies the choice of law of divorce.On this issue, the difference between the traditional theories of the law of the forum and the personal law are still relatively obvious. For the country who adopts the forum law doctrine, the application of the forum law has close connection with the forum's jurisdiction, and this principle receives the most agreement only when the jurisdictional basis of the court is limited to the party1 s domicile. However, the countries adopt the enlarged divorce jurisdiction now, which makes this method not always rational. It is suitable for these countries to reappraises this method. The national legislation and practice who adopt the personal law theory, have mostly realized the equality between the men and women on the personal law, which is mainly shown as the husband's national law abandoned. The adoptions of the supplemental connection factors and "Kegel ladder", make the conflict rules of divorce more flexible in the countries who adopt the personal law doctrine. Though the direct influence of the American conflict law revolution is very small in this field, the interests analysis method and the most signifcant relationship doctrine offer the new visual angles to us respectively in theory and judicial practice. In this domain, divorce freedom has become the new public order. On one hand it shows as elimination of the application of the foreign law who restrict divorce, on the other h...